IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.01.2011 CORAM : THE HONOURABLE MR. JUSTICE S.TAMILVANAN C.R.P.(NPD) No.3108 of 2009 & M.P.No.1 of 2010 1.Shree Latha Agencies a Partnership Firm rep. By its Partner Mr.K.Subramanian 2.K.Subramanian ..... Revision Petitioners Vs. Ramnath & Co. P. Ltd. rep. by its Managing Director Mr.N.Venkateswaran ..... Respondent Revision petition has been filed seeking an order to set aside the order dated 30.06.2007 made in E.A.No.3673 of 2007 in O.S.No.7448 of 2006 by the IX Assistant City Civil Court, Chennai transmitting the decree passed by the Second Assistant City Civil Court, Chennai in O.S.No.7448 of 2006. For Revision Petitioner : Mr.T.T.Ravichandran For Respondent : Mr.P.B.Balaji ORDER
This Civil revision has been preferred by the petitioners/judgment-debtors challenging the order dated 30.07.2007 passed in E.A.No.3673 of 2007 in O.S.No.7448 of 2006 by the IX Assistant City Civil Court, Chennai, transmitting the decree passed by the Second Assistant City Civil Court, Chennai in O.S.No.7448 of 2006.
2.Mr.T.T.Ravichandran, learned counsel appearing for the petitioners submitted that the Court below, ought not to have transmitted the decree to the Sub Court, Ambasamudram as contemplated under Section 3 of CPC. The learned counsel further contended that for transmitting the decree to some other court, the transmitting court should have found that the judgment-debtors must be carrying on business within the jurisdiction of the court, to which the decree has to be transferred or they must be residents of the place to which the court is having jurisdiction. According to the learned counsel appearing for the petitioner, in the instant case, before transmitting the court below ought to have issued notice to the petitioners/judgment-debtors to consider the same. On the aforesaid grounds, the petitioners have challenged the impugned order passed by the Court below. In support of the contention, learned counsel for petitioners relied on the following decisions;
1. Manmatha Pal Choudhury and Others vs. Sarada Prasad Nath and others, 1939 AIR Cal 651;
2. Saralabala Devi vs. Shyam Prasad Chatterjee and others, AIR 1953 CAL 765;
3. Suryaprakasa Rao vs. Bhamidipati Venkata Dikshitalu and another, AIR 1933 Mad. 844;
3.In Manmatha Pal Choudhury and Others vs. Sarada Prasad Nath and others reported in 1939 AIR Cal 651 a Division Bench of the Calcutta High Court while interpreting Section 39 of CPC 1908 has held that the discretion given under Section 39 must be judicially exercised. As per the decision, Section 39 indicates that the Court which passes the decree must apply its mind to the matter, when an application is made by the decree-holder seeking for transfer of the decree to another Court having jurisdiction for execution, and exercise its discretion vested in it in a judicial manner.
4.In the decision in Saralabala Devi vs. Shyam Prasad Chatterjee and others reported in AIR 1953 CAL 765 a Division Bench of the Calcutta High Court has held that under Section 39 and 42 CPC 1908, when transfer of decree is made based on an order passed ex-parte without service of notice on the judgment-debtor, the order would not bind the judgment-debtor. However, in the said case, a Division Bench of the Calcutta High Court held that the discretion was rightly exercised on the ground of the judgment-debtor therein having sufficient property within the jurisdiction of the Court to execute the decree.
5.In Suryaprakasa Rao vs. Bhamidipati Venkata Dikshitalu and another reported in AIR 1933 Mad. 844 it is held thus;
“If a Court decides against a person in his absence a matter in execution petition of which he had not been given notice, he cannot be bound by such decision”
6.Per Contra, Mr.P.B.Balaji, learned counsel appearing for the respondent submitted that there is no illegality in the impugned order passed by the court below. According to the learned counsel, pursuant to the decree obtained by the respondent/decree-holder, in order to execute the decree, filed a petition for transmitting the decree to Sub Court, Ambasumdram within its jurisdiction, the revision petitioner/judgment-debtor has immovable properties which are sufficient for the execution of the decree. Learned counsel appearing for the respondent further contended that the petitioners/judgment-debtors had raised objection to transmit the decree to Sub Court, Ambasamudram and according to him the petitioners/judgment-debtors cannot dictate any mode of executing the decree, detrimental to the rights of the decree-holder, without discharging the liability. In support of his contention, learned counsel for the respondent/decree-holder relied on the following decision rendered by a Division Bench of this court, in Ram Narayan Bhatted vs. Vimala Jhavar and six others reported in 2002(1) CTC 48 wherein it is held that judgment-debtor is under an obligation to satisfy the decree and in default, decree-holder can execute such decree by an execution petition as contemplated under Order 21, Rule 22 of CPC or Rule 39(12) of Original Side Rules of the High Court and for which no notice need be sent to judgment-debtor if execution petition does not fall in the category of certain cases specified under Order 21, Rule 22 of CPC and Rule 39(12)Original Side Rules. Similarly, no permission need be obtained from High Court for simultaneous execution of decree.
7.The Division Bench of this Court in the aforesaid decision has observed as follows:
“The execution proceedings are also regulated by Civil Rules of Practice and the Rule 136 speaks about ‘transmission of decree for execution’. It specifically mandates the requirement of the decree-holder to specify the Court to which the transmission of the decree is sought as in Form No.52 and Rule 138 speaks about return of decree to the transmitting Court, which states if after a decree has been sent to another Court for execution, the decree-holder does not within one year from the date of receipt of the decree on such transfer, apply for the execution thereof, the Court to which the decree has been sent shall certify the fact that no application for execution has been made to the Court which passed the decree and shall return the decree to the court. This rule also specifies about the certificate to be issued by the transferor Court about the fact that no application for execution has been made to the Court which passed the decree. These are all the provisions and rules framed not only to check but also to safeguard the interest of the judgment-debtor that any satisfaction made by the defendant/judgment-debtor towards the decree has got to be notified to the court which passed the decree. These rules also do not prescribe any notice to be rent when execution petition is filed simultaneously before two Courts.”
The Division Bench has extracted the Section Order 21 Rule 6(A)also which reads as follows:
“A copy of the judgment bearing the formulae executorie, sent by a Court in the union Territory of Pondicherry, shall be deemed to be a decree to comply with the requirement or rule 6,
Provided that not withstanding anything contained in rule 2, where any question as to the satisfaction or discharge, in whole or in part, of such a decree arises, the Court executing the decree shall decide it.”
This Court has specifically mentioned that the rule does not prescribe any notice to be sent when execution petition is filed even when simultaneous petitions are filed before two Courts as per the rule stated above. Here in the instant case, the respondent decree-holder has filed the petition only to transfer the decree to Ambasamudram Sub Court where the petitioner/judgment-debtor has sufficient properties to satisfy the decree. Notice be sent thereafter to this judgment-debtor.
8.The Honourable Supreme Court in Mohit Bhargava vs. Bharat Bhushan Bhargave and Others reported in 2007(5) CTC 298 while interpreting Sections 39, 42 and Order 21 CPC has held that if property of judgment-debtor is available outside its jurisdiction there is no discretion left to Court except to transfer decree for execution to the court within the jurisdiction of which property is situated unless it is a case falling under Order 21 Rule 3, where property is situated within the jurisdiction of two or more Courts.
9.In Ganesh vs. Sankaran and another reported in 2006(3)CTC 546 this Court has held that it is for the decree-holder to decide and choose the mode of execution and he cannot be compelled to go in for a particular mode of execution. As per the decision rendered by the Honourable Apex Court in State Bank of India vs. M/s Indexport Registered and Others reported in AIR 1992 SC 1740 the decree-holder is at liberty to choose any mode of execution, as the decree-holder has got right to choose the mode of execution of a decree. In such circumstances, the decree-holder cannot be compelled to chose a particular mode of execution. A Division Bench of Patna High Court in Jagat Kishore Prasad Narain Singh vs. Surendra Kumar Bhadani and Others reported in AIR 1963 Parna 461 (V 50 C 128)has held that non compliance of Rule 5 and Rule 8 amounts of order 21 CPC that a mere irregularity, does not affect jurisdiction of transferee Court.
10.In the instance case, it is not in dispute that the respondent by filing the suit in O.S.No.7448 of 2006 obtained a decree which has reached its finality. Pursuant to the decree, he filed E.A.No.3673 of 2007 before the Executing Court, IX Assistant City Civil Court, Chennai to transfer the decree that was passed by the II Assistant City Civil Court, Chennai to Sub Court, Ambasamudram for execution. According to the respondent/decree-holder, the judgment-debtors have properties within the jurisdiction of Sub Court, Ambasamudram, hence, they filed the Execution Application to transfer the decree. It is relevant to refer Section 39 of CPC which reads thus:
“The court which passed a decree may, on the application of the decree-holder, send it for execution the another court of competent jurisdiction and as per Section B and Section 39(b) if such transferee has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such court for execution.”
It is not in dispute that as per Section 38 of CPC, a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. As per Rule 5 of order 21 CPC, whether a decree is to be sent for execution to another court, which passed such decree shall send the decree directly to such other Court whether or not such other Court is situated in the same State, but the Court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the Court having such jurisdiction. Similarly, Order 8 of Rule 21 speaks about execution of decree or decreetal order to which it is sent by the other Court. It is clear that the decree shall be executed by such Court, in the same manner as if the decree had been passed by such Court in the exercise of its ordinary original civil jurisdiction.
8.It is well settled that the judgment-debtor cannot dictate terms to the decree-holder in filing Execution Petition and to satisfy the decree, in the absence of any legal bar.
9.Considering the facts and circumstances of the revision petition, in the light of the decisions rendered by the Hon’ble Apex Court as well as various high Courts, I am of the view that there is no error or material irregularity which would warrant any interference in the impugned order passed by the court below. Accordingly, this Civil Revision Petition is liable to be dismissed. In the result, confirming the order passed by the court below, this civil revision petition is dismissed.
Smi
To
1.The IX Assistant City Civil Court, Chennai.
2.The Second Assistant City Civil Court,
Chennai